McKibbon v. R.

McKibbon v. R.
Collection
Supreme Court Judgments
Date
1984-03-08
Report
[1984] 1 SCR 131
Judges
Ritchie, Roland Almon; Dickson, Robert George Brian; Estey, Willard Zebedee; Lamer, Antonio; Wilson, Bertha
On appeal from
Ontario
Subjects
Criminal law
Decision Content
Supreme Court of Canada
McKibbon v. R., [1984] 1 S.C.R. 131
Date: 1984-03-08
Rodger David McKibbon (Plaintiff) Appellant;
and
Her Majesty The Queen (Defendant) Respondent.
File No.: 16884.
1983: May 18; 1984: March 8.
Present: Ritchie, Dickson, Estey, Lamer and Wilson JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Criminal law—Procedure—Preliminary inquiry—Preferring indictment—Additional offences disclosed by evidence at preliminary inquiry—Power of agent of Attorney General to prefer indictment on additional offences—Criminal Code, R.S.C 1970, c. C-34, ss. 496, 504, 505, 507 (as amended by 1974-75-76 (Can.), c. 93, s. 63).
At the conclusion of the preliminary inquiry, the presiding provincial court judge committed the appellant for trial on the two counts for which he was charged and declined the Crown’s request to commit him on two additional offences disclosed by the evidence. Later, the Crown counsel preferred an indictment containing four counts under s. 507(2) of the Criminal Code. Two counts corresponded to those for which appellant had been committed and the additional two to offences disclosed from evidence taken at the preliminary inquiry and arising from the same transaction. The Ontario Court of Appeal upheld an Ontario Supreme Court decision to dismiss appellant’s application to quash the two additional counts. This appeal is to determine whether an agent of the Attorney General had authority pursuant to s. 507(2) of the Code to prefer the two additional counts which arose out of the evidence adduced at the preliminary inquiry.
Held (Dickson and Wilson JJ. dissenting): The appeal should be dismissed.
Per Ritchie, Estey and Lamer JJ.: The agent of the Attorney General had the power to prefer an indictment including counts other than those charged but revealed by the evidence at a preliminary inquiry. Such power is found in s. 507(2) of the Criminal Code and was first introduced into the Code in 1907 as s. 873A. The 1969 amendments adding subs. (3), while curtailing the gen- eral power to prefer, did not take away that power. Save a few minor exceptions and Nova Scotia, the following principles govern the preferment of indictments in jury trials:
(A) The Attorney General or anyone with the written consent of a judge of the court may prefer an indictment for any offence irrespective of whether a preliminary inquiry has been held, and if so, whether the accused was discharged or committed for that or any other offence.
(B) Anyone else empowered under s. 507(2) to prefer indictments can do so only if the following conditions have been met: (1) a preliminary inquiry has been held; (2) the accused has been committed for trial on at least one of the charges inquired into by the justice; and (3) the count of the indictment must be for an offence for which the accused was committed or for an offence disclosed in the evidence introduced at the preliminary inquiry, and which is not an offence for which the accused was discharged.
[R. v. Chabot, [1980] 2 S.C.R. 985; Re Criminal Code (1910), 43 S.C.R. 434, considered; R. v. Dwyer and Lauzon (1978), 42 C.C.C. (2d) 83 reversed, on other grounds [1980] 1 S.C.R. 481; R. v. G. & P. International News Ltd. and Judd (1973), 12 C.C.C. (2d) 169; R. v. Philbin and Henderson, [1978] 1 W.W.R. 122; R. v. Wilson (1878), 43 U.C.Q.B. 583; R. v. St. Louis (1897), 1 C.C.C. 141; R. v. Hamilton (1898), 2 C.C.C. 178; R. v. Duff (No. 2) (1909), 15 C.C.C. 454; R. v. King (1956), 114 C.C.C. 125; R. v. Sommervill (1963), 40 C.R. 384; R. v. Biernacki (1962), 37 C.R. 226; R. v. Beaudry, [1967] 1 C.C.C. 272, referred to]
APPEAL from a judgment of the Ontario Court of Appeal (1981), 64 C.C.C. (2d) 441, 35 O.R. (2d) 124, affirming a judgment of Galligan J. (1981), 61 C.C.C. (2d) 126, 34 O.R. (2d) 185, dismissing appellant’s motion to quash counts in an indictment. Appeal dismissed, Dickson and Wilson JJ. dissenting.
David Smye, for the appellant.
David H. Doherty, for the respondent. The judgment of Ritchie, Estey and Lamer JJ. was delivered by
LAMER J.—Appellant applied to Galligan J. of the Supreme Court of Ontario seeking to quash some of the counts of an indictment that had been preferred against him to the General Sessions of the Peace at Hamilton. Galligan J. dismissed the application, and the accused’s appeal to the Ontario Court of Appeal was also unsuccessful. His appeal to this Court is by leave.
The Facts
An information was sworn containing two counts charging the accused with break and entry with intent to commit an indictable offence therein contrary to s. 306(1)(a) of the Criminal Code, and impersonating a police officer contrary to s. 361(a) of the Criminal Code. The accused elected trial by judge and jury.
At the preliminary inquiry the accused was committed for trial on both counts. The presiding Provincial Court Judge, applying this Court’s decision in R. v. Chabot, [1980] 2 S.C.R. 985, declined a request from Crown counsel to commit for trial in respect of two additional offences. It is conceded that these two additional allegations arose out of the same transaction as that concerning the counts for which accused had been committed. It is also conceded that there was evidence led at the preliminary inquiry from which a properly instructed jury could reasonably have convicted the appellant for those requested additional counts. Finally, appellant is not arguing that the evidence in support of those additional counts was of no relevance to the two counts for which he was committed by the Provincial Court Judge.
Crown counsel, acting as an agent of the Attorney General, preferred an indictment under s. 507 of the Criminal Code containing four counts: two of which corresponded to the two counts on the information and for which the accused had been committed (the wording of one of those was in the indictment somewhat different than that in the information); and the other two for offences disclosed from evidence adduced at the preliminary hearing.
The accused had originally sought in the Supreme Court, to quash not only the two additional counts but also one of the two for which he had been committed, an order of prohibition against the conduct of a trial on these counts, and an order of mandamus to compel the quashing of these counts. In his appeal to this Court the accused has abandoned his challenge to the count of the indictment for which he had been committed and is now seeking to quash only the two added counts.
The Issue
Could the agent of the Attorney General prefer an indictment pursuant to s. 507(2) of the Criminal Code of Canada containing counts which alleged offences, the commission of which were disclosed by the evidence taken at a preliminary inquiry but which were not the subject of a charge at the preliminary inquiry, in addition to those counts alleged in the offences contained in the information which were the subject of the preliminary inquiry and for which the accused was committed to stand trial at the conclusion of the preliminary inquiry?
Section 507 reads as follows:
507. (1) In the Provinces of Newfoundland, Prince Edward Island, New Brunswick, Quebec, Ontario, Manitoba, Saskatchewan, Alberta and British Columbia and in the Yukon Territory and Northwest Territories it is not necessary to prefer a bill of indictment before a grand jury, but it is sufficient if the trial of an accused is commenced by an indictment in writing setting forth the offence with which he is charged.
(2) An indictment under subsection (1) may be preferred by the Attorney General or his agent, or by any person with the written consent of a judge of the court or of the Attorney General or, in any province to which this section applies, by order of the court. (3) Notwithstanding anything in this section, where
(a) a preliminary inquiry has not been held, or
(b) a preliminary inquiry has been held and the accused has been discharged,
an indictment under subsection (1) shall not be preferred except with the written consent of a judge of the court, or by the Attorney General.
The governing section for preferring a charge in the case of a trial before a judge of Part XVI is s. 496:
496. (1) Where an accused elects under section 464, 484, or 492 to be tried by a judge without a jury, an indictment in Form 4 shall be preferred by the Attorney General or his agent, or by any person who has written consent of the Attorney General, and in the Province of British Columbia may be preferred by the clerk of the peace.
(2) An indictment that is preferred under subsection (1) may contain any number of counts, and there may be joined in the same indictment
(a) counts relating to offences in respect of which the accused elected to be tried by a judge without a jury and for which the accused was committed for trial, whether or not the offences were included in one information, and
(b) counts relating to offences disclosed by the evidence taken on the preliminary inquiry, in addition to or in substitution for any offence for which the accused was committed for trial.
(3) An indictment that is preferred under subsection (1) may include an offence that is not referred to in paragraph (2)(a) or (b) if the accused consents, and that offence may be dealt with, tried and determined and punished in all respects as if the offence were one in respect of which the accused had been committed for trial, but if that offence was committed wholly in a province other than that in which the accused is before the court, subsection 434(3) applies.
Appellant’s position
The appellant’s argument is, in the result, that the preferment for an additional charge is governed by subs. 3(a) of s. 507 and that only the Attorney General himself and not his agent, short of the agent’s obtaining the Court’s consent, could prefer the indictment. His position is that one must read the words “a preliminary inquiry has (not) been held” as meaning an inquiry pursuant to an information which contains the count or counts subsequently found in the indictment. He says that s. 507 is a comprehensive procedure for preferring indictments in provinces where there is no grand jury, that s. 507(2) applies only when a preliminary has been held upon the offence charged in the information followed by a committal and that, if no preliminary was held or if it resulted in a discharge, it is s. 507(3) which governs the situation. His supportive arguments are twofold. He first argues that the power to add counts in one indictment preferred to a petit jury never existed in provinces where there is no grand jury; his second argument is that, in any event, this power, if it did exist, was taken away in 1969 when the Code was amended to include what is now s. 507(3).
The Crown’s position
The Crown says that the plain meaning of the words “a preliminary inquiry has not been held” makes the limitation found in s. 507(3) to the general power to prefer before a petit jury inapplicable where there has been a preliminary inquiry at which evidence, relevant to the offence charged and sufficient to support a prima facie case on all of the charges contained in the indictment was properly adduced by the Crown, and where a committal results.
The Court of Appeal
The Court of Appeal for Ontario (1981), 64 C.C.C. (2d) 441, 35 O.R. (2d) 124, adopting the obiter view of Lacourcière J.A. in R. v. Dwyer and Lauzon (1978), 42 C.C.C. (2d) 83, and the reasoning adopted by the Court of Appeal of British Columbia in R. v. G. & P. International News Ltd. and Judd (1973), 12 C.C.C. (2d) 169, which was subsequently followed by the Alberta Court of Appeal in R. v. Philbin and Henderson, [1978] 1 W.W.R. 122, agreed with the Crown’s interpretation of the section.
I am of the view that the power to prefer counts other than those charged but revealed by the evidence at a preliminary is found in s. 507(2) since its introduction in 1907 as s. 873A.
I am also of the view that the 1969 amendments, while curtailing the general power to prefer, did not take away that power.
The Power Always Existed
A historical review of the relevant sections shows that s. 507(3) was enacted by Parliament when it realized that what had started out as an exceptional procedure had gradually become the general rule and that control by the courts and greater direct political accountability through the Attorney General’s personal involvement were desirable when by-passing the holding of an inquiry or when overlooking a discharge; and this was so even when there was to be a preferment before a grand jury.
Prior to codification, anyone could, under the common law, prefer an indictment before a grand jury except for certain offences (perjury, subornation of perjury, conspiracy, obtaining money by false pretences, keeping a gambling house, keeping a disorderly house, indecent assault (Vexatious Indictments Act, 1859 (U.K.), 22 & 23 Vict., c. 17) and libel (Newspaper Libel and Registration Act, 1881 (U.K.), 44 & 45 Vict., c. 60, s. 6)). For these offences there was a statutory requirement that the person either be bound over to prosecute by a magistrate following a preliminary inquiry or that he be given permission to prefer before the grand jury by a judge or by the Attorney General. By-passing the grand jury could only be done by a criminal information preferred before the petit jury by the Attorney General, the Solicitor General and the Master of the Crown Office, and, in any event, such a procedure was limited to mis- demeanours. The system of preferment of indictments and that of criminal informations was greatly criticized by Stephen (see Stephen, History of the Criminal Law of England (1883), vol. 1, pp. 293 et seq.). Some of his views appear to have been accommodated in our first Code of 1892.
The Canadian system required the finding of a true bill by a grand jury. At the time, criminal informations, though not abolished till 1953, were no longer being authorized (see R. v. Wilson (1878), 43 U.C.Q.B. 583). The preferment of a bill of indictment, was governed by s. 641 of the Code of 1892:
641. Any one who is bound over to prosecute any person, whether committed for trial or not, may prefer a bill of indictment for the charge on which the accused has been committed, or in respect of which the prosecutor is so bound over, or for any charge founded upon the facts or evidence disclosed on the depositions taken before the justice. The accused may at any time before he is given in charge to the jury apply to the court to quash any count in the indictment on the ground that it is not founded on such facts or evidence, and the court shall quash such count if satisfied that it is not so founded. And if at any time during the trial it appears to the court that any count is not so founded, and that injustice has been or is likely to be done to the accused in consequence of such count remaining in the indictment, the court may then quash such count and discharge the jury from finding any verdict upon it.
2. The Attorney-General or any one by his direction or any one with the written consent of a judge of any court of criminal jurisdiction or of the Attorney-General, may prefer a bill of indictment for any offence before the grand jury of any court specified in such consent; and any person may prefer any bill of indictment before any court of criminal jurisdiction by order of such court.
3. It shall not be necessary to state such consent or order in the indictment. An objection to an indictment for want of such consent or order must be taken by motion to quash the indictment before the accused person is given in charge. 4. Save as aforesaid no bill of indictment shall after the commencement of this Act be preferred in any province of Canada.
A bill of indictment could be preferred with or without a preliminary inquiry into the matter, but, if no preliminary had been held, only the Attorney General, or someone by his direction or that of the Court or the consent of the Court could prefer before the grand jury. The main change in the system was that prosecutors other than those aforementioned had to go through a preliminary inquiry and then could prefer before the grand jury, for offences: 1) for which the accused had been committed, if bound over to do so; 2) for which he had been discharged but only if the prosecuting person had requested to be bound over to prosecute same; 3) which were founded upon the facts disclosed on the depositions taken before the justice in the course of the preliminary inquiry.
As for speedy trials, (roughly today’s trials before a judge of Part XVI) the charging process was governed by the following sections: 765, 767 and 773, ss. 767(2) and 773 being those relevant to this appeal:
767. …
2. If the prisoner demands a trial by jury the judge shall remand him to gaol; but if he consents to be tried by the judge without a jury the county solicitor, clerk of the peace or other prosecuting officer shall prefer the charge against him for which he has been committed for trial, and if, upon being arraigned upon the charge, the prisoner pleads guilty, the prosecuting officer shall draw upon a record as nearly as may be in one of the forms MM or NN in schedule one to this Act, such plea shall be entered on the record, and the judge shall pass the sentence of the law on such prisoner, which shall have the same force and effect as if passed by any court having jurisdiction to try the offence in the ordinary way.
773. The county attorney or clerk of the peace or other prosecuting officer may, with the consent of the judge, prefer against the prisoner a charge or charges for any offence or offences for which he may be tried under the provisions of this part other than the charge or charges for which he has been committed to gaol for trial, although such charge or charges do not appear or are not mentioned in the depositions upon which the prisoner was so committed.
(Emphasis added.)
We need not here consider summary trials.
The Code of 1892 was setting up a new system whereby the normal process was the holding of a preliminary before a justice or a magistrate.
Generally speaking, by-passing the grand jury, (though theoretically possible through criminal informations) occurred only when and as a result of an accused consenting to be tried for certain indictable offences under Part LIV (speedy trials).
By-passing the preliminary inquiry required the Attorney General’s direction or consent or that of the court. But, of importance, once a preliminary had been held, except for speedy trials, binding over was sufficient to overcome the effect of a judge’s discharge. Furthermore, as for offences not charged but revealed by the evidence adduced at the preliminary the rule did not even require committal. Committal would seem to be a restriction for speedy trials, but is only the result of the nature of that process. Speedy trials could only be offered to those who were going to be tried, and committal was not referred to in the governing sections as a restriction but mentioned as an inevitable prerequisite. The letter of the ancestor section to today’s s. 496 would appear at first sight to be giving a much wider charging power. But it did not, as a matter of practice operate in that way and was quite in line with the rule for jury trials. Indeed, the judge when consenting to additional charges was expected to exercise his discretion in a way that would protect the accused who had consented to the process and relinquished his right to a jury trial on the charge for which he had been committed.
Comments in Tremeear’s Criminal Code (2nd ed., 1908), on s. 834, the successor to s. 773 of the Code of 1892, support this view. At pages 668-69:
Preferring another charge.]—Notwithstanding the provisions of sec. 834, a judge should not, against the wish of a prisoner, give his consent, at the trial before him, under the speedy trials clauses without a jury, to any other charge being preferred than that upon which the prisoner was committed for trial, unless it is clear that, while it may be more formally or differently expressed, it is substantially the same charge as the one on which he was committed for trial. R. v. Carriere (1902), 6 Can. Cr. Cas. 5, 14 Man. R. 52.
In order to have the right to prefer such other charge, the prisoner must have been committed or admitted to bail and subsequently placed and held in custody, on the charge of having committed an indictable offence, for which he had the right to demand a speedy trial without a jury, he must have been brought and must be legally before the judge of sessions, he must have consented to waive his right to a trial by jury and have consented to take a speedy trial without one. The object of this provision is to permit, during the course of a speedy trial, the prosecuting officer to prefer the same charge in another form, to substitute a charge for an attempt to commit an offence when the charge is for the complete commission of the offence, or to substitute a charge for the commission of an offence which is a lesser one than the offence for which the prisoner was committed for trial, but which is included in its commission, even though it should not be stated as described in the depositions. The other charge must not be a totally distinct charge nor be wholly disconnected with the charge for which the committal or the admission to bail for trial was made. It must be cognate to the one for which the prisoner was committed or bailed. R. v. Wener (1903), 6 Can. Cr. Cas. 406 (Que.). When the charge has been drawn without sufficient accuracy, a proper and appropriate charge may be substituted and preferred. This gives a reasonable application to the provisions contained in sec. 834, which must preclude any other interpretation. Regina v. Lonar, 25 N.S.R., p. 124; Regina v. Smith, 25 N.S.R., p. 138, and Regina v. Morgan, 2 B.C.R., p. 829. The prisoner need not necessarily be tried for an offence in the language of the commitment or of the recognizance, but he may be tried on any form of charge in which the offence can properly be described, although not so mentioned in the depositions. R. v. Wener (1903), 6 Can. Cr. Cas. 406; Cornwall v. Regina, 33 U.C.Q.B. 119.
In case of a substitution of another charge for which the law permits a heavier punishment the prisoner’s consent should be distinctly obtained, not to the substitution, but to the waiving of the right of trial by jury. Goodman v. R. (1883), 3 Ont. R. 18.
Where a man consents to waive his right to a jury, and to be tried summarily by the judge on a charge which on its face would only warrant an imprisonment for less than a year, he ought not by any implication to be held as assenting to waive such right as to any charge that the law may allow to be substituted therefor which might render him liable to a larger punishment, and his assent to be summarily tried on the substituted charge should be obtained and recorded. Ibid.
The consent of the judge must be obtained before the “other charge” is preferred. R. v. Cohon, 6 Can. Cr. Cas. 386 (N.S.).
After a committal for trial at the instance of the Crown upon a charge of manslaughter and arraignment thereon under the speedy trials clauses and election of the accused for speedy trial without a jury, the proceedings in the county court judge’s criminal court will not be stayed at the instance of the Crown to enable a charge of murder to be substituted. The King v. Telford, 8 Can. Cr. Cas. 223.
After an election for speedy trial without a jury, leave should not be granted to add other charges substantially different from those upon which his election was made, unless the accused is willing to elect speedy trial in respect also of such additional charges. R. v. Douglas (1906), 12 Can. Cr. Cas. 120 (Man.).
The grand jury system was generally awkward and unfair to victims or other informants who had initiated a prosecution and were bound over. Awk- ward because public officers interested in the prosecution of crime had to either get a consent from the Attorney General or the Court, or lay an information. Unfair to them because, when laying an information before a justice, they were considered as being on the same footing as a private informant, were subject to being bound over and personally risk the consequences of a grand jury not finding a true bill or the consequences of an acquittal subsequent to a true bill. (See R. v. St. Louis (1897), 1 C.C.C. 141). Furthermore, it was unfair to the victims of crimes who prosecuted: “The fact that the attorney-general and the Crown prosecutors take charge of a case when it is transmitted to the proper Court and it is a public one and therefore submit the indictment to the Grand Jury and conduct the case before the Petit Jury, does not relieve the prosecutor from his liability to pay such costs on the happening of any of the events just enumerated.” (See R. v. St. Louis, supra, per Wurtele J., at p. 147). Added to that was the fact that “The preferring of an indictment by an agent of the Attorney-General acting under a general appointment to attend to all criminal cases at a session of the Court without having obtained the special direction of the Attorney-General or an order or consent under Cr. Code, sec. 641, is not a compliance with Cr. Code, sec. 641, requiring the indictment to be preferred by the person bound over by recognizance to prefer the same, and, if the latter fails to appear, the indictment should be quashed.” (The summary of the decision of Weatherbe J., Graham E.J., and Henry J. in R. v. Hamilton (1898), 2 C.C.C. 178, (C.A.N.S.))
Parliament in 1900, one might assume in reaction to this latter decision of the Court of Appeal for Nova Scotia, amended s. 641 of the Code by enacting 63-64 Vict., c. 46, s. 641, which added a paragraph: 641. …
2. The counsel acting on behalf of the Crown at any court of criminal jurisdiction may prefer against any person who has been committed for trial at such court a bill of indictment for the charge on which the accused has been so committed or for any charge founded on the facts or evidence disclosed in the depositions taken before the justice.
Crown counsel could therefore prefer the indictment in the stead of the person bound over or, more important, when no one was bound over following the committal. There was however a limitation, the requirement that there had to be a committal. In the case of a discharge, only the person bound over at his request could prefer the indictment, save of course a specific preferment under s. 641(3).
To summarize one sees that, by 1900, under the grand jury system the holding of a preliminary inquiry resulting in a committal was the rule and could be avoided or a discharge subsequent thereto could be overlooked only subject to either the control of the courts or to personal accountability on the part of a private citizen being open to forfeiture of his security, the payment of costs and even damages, or subject to control by the Attorney General. But on the other hand, once a preliminary had resulted in a committal, the system was lax as to what charges could be preferred, the only prerequisite (even for speedy trials as a matter of judicial practice) being that it be for a charge “founded on the facts or evidence disclosed in the depositions”.
The Revised Statutes of Canada of 1906 brought no change to the system, save a rearrangement and renumbering of the relevant sections. But in 1907, by the enactment of s. 873A (6 & 7 Ed. VII, c. 8) there was introduced for the first time as an exception for the provinces of Saskatchewan and Alberta what has now become the system for all provinces save Nova Scotia.
873A. In the provinces of Saskatchewan and Alberta, it shall not be necessary to prefer any bill of indictment before a grand jury, but it shall be sufficient that the trial of any person charged with a criminal offence be commenced by a formal charge in writing setting forth as in an indictment the offence with which he is charged.
2. Such charge may be preferred by the Attorney General or an agent of the Attorney General, or by any person with the written consent of the judge of the court or of the Attorney General, or by order of the court.
This was at the time an exceptional mode of prosecution. There needed not be any preferment before a grand jury. These two new provinces had already known the system as having been part of the Northwest Territories where there was no grand jury. Preliminary inquiries were held but this was not always the rule, as appears from the remarks of Johnstone J. then of the Supreme Court of Saskatchewan, sitting en banc in 1909 in the case of R. v. Duff (No. 2) (1909), 15 C.C.C. 454, where he said, at p. 465:
It has been of common occurrence in this Province in the past, and in the Territories forming the Provinces of Saskatchewan and Alberta for years before the foundation of these Provinces, to commence the prosecution of persons for criminal offences without first having had a preliminary hearing before a justice of the peace.
The list of persons at s. 873A does not include “counsel acting on behalf of the Crown”. The persons therein listed are practically the same persons, when adding to them the agents of the attorneys general, that could by-pass the holding of a preliminary inquiry or a discharge.
Nevertheless, following the introduction of s. 873A into the Code there was great uncertainty as to whether a preliminary could be by-passed in view of the fact that there was no grand jury. In 1910, this Court, Idington J. dissenting, on a reference Re Criminal Code (1910), 43 S.C.R. 434, found in the affirmative. Every judge clearly states in his reasons that the finding, because made on a reference, was not binding and that furthermore the Court had not had the benefit of adversarial argument. Idington J. predicated his dissent essen- tially on two arguments: first, that as regards s. 873A, there was open to the Court two interpretations, one of which permitting to read into that section the requirement for a preliminary inquiry. This is what I understand from his remarks, at p. 450:
It seems to me the question cannot be answered as if beyond doubt, and when answered here and thus ex parte can bind no one.
But I am quite sure of one thing relative to the administration of justice, and that is that no one entrusted therewith or any part thereof should ever jeopardize or prejudice by the adoption of a doubtful course of procedure, when a safer one was at hand, either the administration of justice or the standing, reputation or freedom of another for a single hour.
I therefore answer the first question, ‘yes,’ and each of the others, ‘no.’
His other argument was more textual. It seized onto the words of s. 873A “the trial of any person charged with a criminal offence be commenced by a formal charge”. His reasoning went as follows, at pp. 448-49:
With some changes in 1869 the law stood as above indicated till the Criminal Code was enacted in 1892.
Section 641 thereof expressly prohibited indictments being preferred unless there had been the preliminary examination followed by a prosecutor being bound over or a committal; or the Attorney-General or any one by his direction or a judge permitted.
This was again amended by 63 & 64 Vict. ch. 46, and again by the Revised Statutes of Canada and stood as it now stands in the Criminal Code sections 870 to 873 inclusive.
These sections are plain. They require, except in specified cases left to the discretion of an Attorney-General or a judge of a court of record or of criminal jurisdiction, preliminary proceedings.
The amendment section 873(a) does not in the slightest degree imply any intention to repeal them beyond the obvious necessity arising from the substitution of the officers above named for the discharge of the functions of the grand jury relative to placing a man on his trial. It deals only with the case of “the trial of any person charged with a criminal offence.” How charged? Is it confined to those who have been judicially so charged, by virtue of the provisions of the law for committing the accused for trial?
How can it mean aught else? The word “charged” is the apt one to designate a person accused and in charge. Doubtless it has another meaning but it may well be argued that it is in this restricted sense that the Act applies it.
(Emphasis added.)
The majority’s view was that the system those Territories had known prior to their becoming provinces would continue. Though they did not expressly say so one might assume that they felt that the fact those Territories had become provinces did not change the need for an exceptional mode of prosecution in that part of the country. Also, they said that the text of s. 873A was clear, unambiguous and expressed clearly what Parliament had intended. But the Court so insisted on the fact that the decision was in no way binding that I cannot but think that the uncertainty the reference was intended to dispel remained. Nevertheless, Parliament did not speak out on that aspect of the matter till 1953. In the meantime however, by amendments in 1909, 1925 and in 1943, the charging power in the case of speedy trials was gradually modified.
By 1944 the Criminal Code provided:
827. …
2. If the prisoner has been brought before the prosecuting officer, and consents to be tried by the judge, without a jury, the trial shall proceed on the day named by the judge in the manner provided by the next following subsection.
(3) In such case or if the prisoner has been brought before the judge and consents to be tried by him without a jury, the prosecuting officer shall prefer a formal statement in writing, setting forth as separate counts therein the charge or charges against him for which he has been committed for trial and any charge or charges founded on the facts or evidence disclosed in the depositions and any charge or charges preferred against him pursuant to the provisions of section eight hundred and thirty-four. 834. The prosecuting officer may, with the consent of the judge, prefer against the prisoner a charge for any offence for which he may be tried under the provisions of this Part other than the charge for which he has been committed to jail for trial or bound over, although such charge does not appear or is not mentioned in the depositions upon which the prisoner was committed or is for a wholly distinct and unconnected offence: Provided that the prisoner shall not be tried under this Part or upon any such additional charge unless with his consent obtained as hereinbefore provided.
2. Any such charge may thereupon be dealt with, prosecuted and disposed of, and the prisoner may be remanded, held for trial or admitted to bail thereon, in all respects as if such charge had been the one upon which the prisoner was committed for trial.
Following a committal, no longer was the judge’s and the accused’s consent required as regards offences revealed at the preliminary. The criterion of the case law for the judge giving his consent had been enacted. By 1944, the special intervention, consent or direction of the attorney general or his agent or of the court was only required to by-pass a preliminary or to overcome a discharge so as to go directly to trial with a jury in petit jury provinces or to the grand jury in others. If a preliminary had been held and resulted in a committal “a prosecuting officer” could, in speedy trials, charge additionally or in the stead of the offence the object of the committal for any offence revealed by the evidence. On the other hand, the powers of the agent of the Attorney General (as all others listed in today’s s. 507(2)) were unlimited for jury trials but limited to those of a “prosecuting officer” in speedy trials: the offence charged had to be disclosed in the evidence taken at the preliminary. The limitation to the Attorney General’s and his agent’s wide powers to indict in the case of jury trials when charging in speedy trials is understandable in the light of two facts: the Attorney General could always avoid a speedy trial by ordering a trial by jury (see R. v. King (1956), 114 C.C.C. 125; that power recognized by the courts was eventually enacted by 1968-69 (Can.), c. 38, s. 43, and is today s. 498 of the Code); furthermore, this was only fair to the accused, who has relinquished his right to a jury trial on the assumption that he would be tried for an offence related to the events that were investigated and disclosed to him at the preliminary inquiry.
In the new Code of 1953, Parliament modified the wording of the section, by then s. 489, and replaced the words “the trial of any person charged with a criminal offence” upon which Idington J. rested in part his dissenting views by the words “the trial of an accused”.
489. (1) In the provinces of Quebec, Manitoba, Saskatchewan, Alberta and British Columbia and in the Yukon Territory and Northwest Territories it is not necessary to prefer a bill of indictment before a grand jury, but it is sufficient if the trial of an accused is commenced by an indictment in writing setting forth the offence with which he is charged.
(2) An indictment under subsection (1) may be preferred by the Attorney General or his agent, by the Deputy Attorney General, or by any person with the written consent of a judge of the court or of the Attorney General or, in any province to which this section applies, by order of the court.
By then other provinces, namely Quebec, Manitoba and British Columbia, that had formerly been grand jury provinces, had joined Saskatchewan and Alberta in a non grand jury system. The considerations that could explain and justify for Alberta and Saskatchewan such an exceptional system at the outset were no longer valid for those two provinces and in any event could surely not be invoked as regards these newcomers. Yet Parliament did not speak out, except to take out of the Code most of the footing of the argument of Idington J. Curiously, Parliament specifically abrogated in 1953 what had since long disappeared, the laying of criminal informations. Yet, this is precisely for all practical purposes what could be done under s. 489, and even more so as it applied to all indictable offences and not only to misdemeanours as was the case for criminal informations. Be that as it may, I cannot read down, as suggested by appellant, the unambiguous language of s. 489 of the 1953 Code that Parliament could well have modified had it intended to express its disagreement with the views of the majority of this Court in Re Criminal Code.
At the time of the 1969 amendments, there was no restriction on the power enjoyed by those persons listed at today’s s. 507(2) to indict directly in jury trials. Furthermore, the restriction to their powers to indict was only for trials before a judge of Part XVI, and, though requiring that a preliminary had been held, that there be a committal, and that the count be one related to offences disclosed in the evidence, clearly did not require that a preliminary have been held and a committal have ensued for each count found in the indictment.
The 1969 Amendments
But there was an anomaly. As I said, at the outset the exceptional mode of prosecuting instituted in 1907 had become the rule. Also, there was a controversy between the courts of various provinces as to whether, having chosen to proceed by resorting to a preliminary inquiry, an attorney general could under the section shortcircuit the process before the magistrate’s decision, or overrule his discharge by indicting directly. (For a review of the case law on the point, see Culliton CJ.S. in R. v. Sommervill (1963), 40 C.R. 384). Even t